A. Introduction

State and federal statutes may be struck down as applied to certain situations if they violate Constitutional rights. Both state and federal civil rights statutes have been challenged on constitutional grounds. Two possible constitutional objections might be raised against a law like P.A. 70.[62] Groups might claim that the regulations imposed by the law violate their right to freely associate or that they violate the establishment of religion clause. An investigation of these rights will reveal the limits of the federal civil rights laws which have been discussed.

The courts have protected certain groups as private associations when those groups have a high degree of selectivity, relative smallness and seclusion from others in certain respects. Courts have carefully scrutinized organizations under this test because the legislature has clearly expressed a desire to eliminate discrimination and clubs have used the freedom of association as a pretext for discriminatory practices.

B. Freedom of Association

Numerous groups have tried to overcome discrimination claims by asserting their First Amendment right to associate.[63] The assertion of this right is subject to court scrutiny and has been carefully considered by the courts. In many cases involving discrimination claims, defendants assert their right to associate freely. Since this is a constitutional right, statutes may not take it away.

In Roberts v. United States Jaycees,[64] the United States Supreme Court dealt with associational rights in a case where it had to determine whether or not the Jaycees had the right to prohibit the admission of women as regular members.[65] The Jaycees argued that a Minnesota statute that made illegal its prohibition against women members violated the Jaycees' freedom of association.[66] The Court identified two types of freedom of association.

In one line of decision, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our Constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment – speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.[67]

The Court continued by listing attributes of intimate associations: "relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship."[68] Since the Jaycees are a large organization and select members only on the criteria of being males between 18 and 35, members of the Jaycees did not have intimate associations entitled to constitutional protection.[69]

The Court then looked to the expressive associations of the Jaycees, noting that an individual's First Amendment freedoms entitle him to a correlative freedom to "engage in group effort toward those ends."[70] The Court held that interference in the internal affairs of a group – requiring women to be voting members, for instance – violated the Jaycees' freedom of expressive association. However, the Court held that such a freedom was not absolute and may be infringed by "regulations adopted to serve a compelling state interest, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms."[71] The Court found that the ending of gender-based discrimination was indeed a compelling state interest.[72] Moreover, the Court found that the law was no more restrictive than necessary in responding to that interest.[73] As the Supreme Court has noted, the regulations adopted must serve the government's compelling state interests that cannot be achieved by means significantly less restrictive of associational freedoms. If a club can show that its expressive association is being violated, the state must show that no significantly less restrictive means exist to serve compelling ends. The elimination of discrimination is a compelling end. As has been seen above, the means of achieving this goal could have been achieved through significantly less restrictive means.

The lower courts have closely followed the Supreme Court's decision regarding associational freedom. Other groups claiming exemptions as private clubs have failed because they lack the necessary plan or purpose of exclusiveness. In Brown v. Loudoun Golf & Country Club, Inc.,[74] a private golf course was held to be a place of public accommodation because it hosted athletic teams or other sources of entertainment that moved in commerce.[75] The court then held that the golf club was not a private club because although the club had admission procedures, it had no admission policies and only four white members had been rejected since the procedures took effect. In short, virtually every white person who applied for membership in the club was accepted. Thus, it appeared that true selectiveness was lacking.[76]

The court carefully scrutinized the element of selectiveness as expressed by the club.[77] It noted that although formal admission procedures existed in theory, they did not indicate that persons were judged on moral, religious or other social standards before admission.[78] Since it appeared that few non-minority applicants were rejected, the policy was a seen as a pretext for racial discrimination. Such policies by clubs have never withstood court scrutiny.

The freedom of association is a cherished right. The courts might be willing to strike down laws that infringe on this right if it could be shown that the effect of it was not to limit or end discrimination and that any discrimination that existed could be eliminated by less intrusive laws. If clubs can show that P.A. 70 fails to achieve the goals it has set for itself and that it curbs the activities of the clubs, they might succeed in blunting the impact of the Act.

C. Establishment of Religion

If a statute makes an exception for religious groups, as P.A. 70 did, groups may challenge the application of the law to them, but not to religious groups, on the grounds that an establishment of religion has occurred. P.A. 70, codified in part as M.C.L.A. §37.2301(a)(iv) makes an accommodation for a dining club "that in good faith limits its membership to the members of a particular religion for the purpose of furthering the teachings or principles of that religion, and not for the purpose of excluding individuals of a particular gender, race, or color."[79] This exception in the statute raises two issues. On the one hand, does such a statute impermissibly benefit religion contrary to the Establishment Clause of the First Amendment? On the other hand, since only dining clubs are explicitly exempted, are golf clubs that are religious implicitly exempted? The court decisions in this area make it virtually impossible for to challenge P.A. 70 on establishment grounds.

The Supreme Court has indicated that the Establishment Clause does not prohibit making exceptions for religion. In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos,[80] the Court had to consider whether or not an exception for religious institutions in 42 U.S.C. §2000e-1 violated the Establishment Clause. The original plaintiff was a building engineer who worked at a gymnasium operated through the Church of Jesus Christ of Latter-Day Saints.[81] In looking at that case, the Court noted "[t]here is ample room under the Establishment Clause for benevolent neutrality which will permit religious exercise to exist without sponsorship."[82]

The exception for religions in §2000 does not violate what the courts have called the Lemon test. This so-called test is used to judge laws that involve the state in promoting religion. This test has three parts, all which the statute at issue passed. First, the court said that legislation may "alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions."[83] The Court also saw that the government was not advancing religion through the exemption because the religious activity seems to have been left in the same place it had been before the passage of civil rights legislation (part two of the test).[84] Finally, the Court summarily dismissed the entanglement part of Lemon by noting that the statute "effectuates a more complete separation of the two (the church and the state) and avoids a kind of intrusive inquiry into religious belief."[85]

As a consequence of this opinion, a challenge to P.A. 70's exception for religious dining clubs will be ineffective. The analysis in Amos would certainly protect the constitutionality of the statute here under consideration.